TRIBHUWAN BAITHA, BHILAI V. ASSISTANT COMMISSIONER OF INCOME TAX ,CIRCLE 1(1), BHILAI

ITA 160/RPR/2019

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 0475 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 21-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 274

Judgement Text

आयकर अपीलȣय अͬधकरण Ûयायपीठ रायप ु र मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA Nos. 160 & 161/RPR/2019 Ǔनधा[रणवष[ / Assessment Years : 2013-14 & 2014-15 Shri Tribhuwan Baitha Dahilia-460, B- Block, Talpuri, C.G-490026 PAN : ADWPB3666Q .......अपीलाथȸ / Appellant बनाम / V/s. The Assistant Commissioner of Income Tax-1(1), Bhilai (C.G.) ......Ĥ×यथȸ / Respondent Assessee by : Shri Nilesh Jain, CA Revenue by : Shri G.N Singh, Sr. DR स ु नवाईकȧतारȣख / Date of Hearing : 26.07.2022 घोषणाकȧतारȣख / Date of Pronouncement : 04.08.2022 2 Shri Tribhuwan Baitha Vs. ACIT-1(1), Bhilai ITA Nos.160 & 161/RPR/2019 आदेश/ ORDER PER RAVISH SOOD, JM: The captioned appeals filed by the assessee are directed against a common order passed by the CIT(Appeals)-II, Raipur, dated 20.02.2019, which in turn arises from the respective orders passed by the A.O under Sec. 271(1)(c) of the Income-tax Act, 1961 (for short ‘the Act’) dated 20.04.2017 & 26.04.2017 for the assessment years 2013-14 & 2014-15. As the issues involved in the captioned appeals are inextricably interlinked or in fact interwoven, therefore, the same are being taken up and disposed off by way of a common order. We shall first take up the appeal filed by the assessee for the assessment year 2013-14 wherein the assessee has assailed the impugned order on the following grounds of appeal before us: “1. In the facts and circumstances of the case and in law, the penalty order is illegal and bad-in-law in as much as the penalty was imposed on the ground of concealment of income and furnishing of inaccurate particulars of income on the basis of show cause notice issued u/s 274 read with section 271(1)(c) of the Income-tax Act, 1961 without specifying the exact nature of default i.e. whether there is concealment of income or furnishing of inaccurate particulars of income and contrary to the law laid down by Hon'ble Supreme Court in the case of CIT vs. SSA's Emerald Meadows in SLP CC No. 11485/2016. 2. In the facts and circumstances of the case, the ld. Assessing Officer has erred in levying penalty for incorrect claim of deduction with respect to perquisites in the return of income and contrary to the law laid down by Hon'ble Supreme Court in the case of CIT vs. Reliance Petro Products Pvt. Ld. (2010) 322 ITR 158. 3 Shri Tribhuwan Baitha Vs. ACIT-1(1), Bhilai ITA Nos.160 & 161/RPR/2019 3. In facts and circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has erred in confirming penalty imposed of Rs. 17,900/- u/s 271(1)(c) by ld. Assessing Officer. 4. The appeal order is bad in law and on facts. 5. The appellant reserves the right to add, amend, alter, omit or withdraw all or any of the grounds of appeal. 2. Succinctly stated, the assessee who is a salaried employee with Bhilai Steel Plant (“BSP”) and is working as a Senior Manager, had filed his return of income for A.Y. 2012-13 on 11.09.2013 declaring an income of Rs.15,19,940/-. 3. On the basis of material that had surfaced in the course of survey proceedings conducted on two income tax practitioners, viz. Shri. Vijayendra Rongde and Shri Sandeep Deshmukh, it was gathered by the AO that the assessee as a beneficiary had availed their services for suppressing his returned income by reducing the amount of perquisite and/or salary. Acting upon the aforesaid information the AO reopened the case of the assessee u/s.147 of the Act. In compliance, the assessee filed his return of income disclosing gross total income of Rs.15,77,850/-. Observing, that the assessee had come forth with a correct disclosure of his income only on receipt of a ‘Show Cause Notice’ (SCN) issued u/s.274 r.w.s 271 of the Act, the A.O while culminating the assessment vide his order passed u/s. 143(3)/147 dated 14.10.2016 alleging ‘concealment of income’ initiated penalty proceedings u/s.271(1)(c) of the Act. 4 Shri Tribhuwan Baitha Vs. ACIT-1(1), Bhilai ITA Nos.160 & 161/RPR/2019 4. Subsequently, the A.O vide his order passed u/s. 271(1)(c), dated 20.04.2017 imposed a penalty of Rs.17,900/- on the assessee for both the defaults contemplated in the aforesaid statutory provision i.e., ‘concealment of income’ and ‘furnishing of inaccurate particulars of income’. 5. Aggrieved the assessee carried the matter in appeal before the CIT(Appeals) but without any success. 6. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 7. We have heard the ld. authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the ld. Authorised Representative (for short “AR”) for the assessee in order to drive home his contentions. At the very outset of the hearing of the appeal, it was submitted by Shri. Nilesh Jain, the ld. AR that as the AO had in the SCN, dated 14.10.2016 failed to strike off the irrelevant default, therefore, he had wrongly assumed jurisdiction and imposed the impugned penalty on the assessee. 8. Admittedly, it is a matter of fact borne from record that the A.O in the ‘SCN’ dated 14.10.2016 that was issued a/w the assessment order had while initiating the penalty proceedings u/s. 271(1)(c) of the Act failed to strike off the irrelevant 5 Shri Tribhuwan Baitha Vs. ACIT-1(1), Bhilai ITA Nos.160 & 161/RPR/2019 default for which the impugned penalty proceedings were initiated by him. Be that as it may, we find that though the AO while framing the assessment vide his order passed u/ss.143(3)/147 of the Act, dated 14.10.2016, had initiated penalty proceedings u/s.271(1)(c) alleging that the assessee had concealed his income, however, the same, thereafter, was imposed by him vide his order passed u/s.271(1)(c) of the Act, dated 20.04.2017 for both the defaults i.e. ‘concealment of income’ and ’furnishing of inaccurate particulars of income. In our considered view, as both the defaults i.e., ‘concealment of income’ and ‘furnishing of inaccurate particulars of income’ are separate and distinct defaults which operate in their exclusive fields, therefore, imposition of penalty by the A.O qua the aforesaid solitary addition for both of the aforesaid defaults contemplated in Section 271(1)(c) of the Act cannot not be sustained and is liable to be struck down on the said count itself. We find that the fine distinction between the said two defaults contemplated in Sec. 271(1)(c), viz. ‘concealment of income’ and ‘furnishing of inaccurate particulars of income’ had been appreciated at length by the Hon’ble Supreme Court in its judgments passed in the case of Dilip& Shroff Vs. Jt. CIT (2007) 210 CTR (SC) 228 and T. Ashok Pai Vs. CIT (2007) 292 ITR 11 (SC). The Hon’ble Apex Courtin in its aforesaid judgments, had observed, that the two expressions, viz. ‘concealment of particulars of income’ and ‘furnishing of inaccurate particulars of income’ have different connotation. We are of the considered view, that now when the AO while culminating the 6 Shri Tribhuwan Baitha Vs. ACIT-1(1), Bhilai ITA Nos.160 & 161/RPR/2019 assessment had in the body of the assessment order initiated the impugned penalty u/s 271(1)(c) for the default i.e, ‘concealment of income’, therefore, there was no justification on his part in imposing the same for both the defaults i.e, ‘concealment of income’ and ‘furnishing of inaccurate particulars of income’. We, thus, for the aforesaid reasons not being able to persuade ourselves to subscribe to the imposition of penalty by the A.O, therefore, set-aside the order of the CIT(A) who had upheld the same. The penalty of Rs.17,900/- imposed by the A.O under Sec.271(1)(c) is quashed in terms of our aforesaid observations. 9. In the result, the appeal of the assessee in ITA No.160/RPR/2019 for the assessment year 2013-14 is allowed in terms of our aforesaid observations. ITA No.161/RPR/2019 A.Y.2014-15 10. As the facts and the issue involved in the present appeal remains the same as were there before us in the aforementioned appeal of the assessee in ITA No.160/RPR/2019 for assessment year 2013-14, therefore, our order therein passed while disposing off the said appeal shall apply mutatis-mutandis for disposing off the present appeal in ITA No.161/RPR/2019 for the assessment year 2014-15. In this case also we set-aside the order of the CIT(A) and quash the penalty of Rs.21,880/- imposed by the A.O under Sec.271(1)(c) on the same terms and observations as were recorded by us while adjudicating the assessee’s appeal in ITA No.160/RPR/2019 for assessment year 2013-14. 7 Shri Tribhuwan Baitha Vs. ACIT-1(1), Bhilai ITA Nos.160 & 161/RPR/2019 11. In the result, the appeal of the assessee in ITA No.161/RPR/2019 for the assessment year 2014-15 is allowed in terms of our aforesaid observations. 12. In the combined result, both the appeals of the assessee are allowed in terms of our aforesaid observations. Order pronounced in open court on day of 04 th August, 2022. Sd/- Sd/- ARUN KHODPIA RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायप ु र/ RAIPUR ; Ǒदनांक / Dated : 04 th August, 2022 SB आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals)-II, Raipur (C.G) 4. The Pr. CIT-II, Raipur (C.G) 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, रायप ु र बɅच, रायप ु र / DR, ITAT, Raipur Bench, Raipur. 6. गाड[ फ़ाइल / Guard File. आदेशान ु सार / BY ORDER, // True Copy // Ǔनजी सͬचव / Private Secretary आयकर अपीलȣय अͬधकरण, रायप ु र / ITAT, Raipur. 8 Shri Tribhuwan Baitha Vs. ACIT-1(1), Bhilai ITA Nos.160 & 161/RPR/2019 Date 1 Draft dictated on 26.07.2022 Sr.PS/PS 2 Draft placed before author 26.07.2022 Sr.PS/PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order